Bob Was Employed By The RSL Club On 24 June 2009 As A Part- ✓ Solved

Bob was employed by the RSL club on 24 June 2009 as a part-t

Bob was employed by the RSL club on 24 June 2009 as a part-time sommelier in the Cellar Wine Bar at the club’s main venue in Harbour town. The club is comprised of five venues and employs 460 employees and 800 contractors. The club has policies and procedures, which included its Code of Conduct. Bob had attended annual training in relation to the Code of Conduct on 26 August 2011. Bob had worked for the club for a number of years when the club decided that the bar work was going to be done by contractors. Bob was asked to arrange for an ABN and to put in invoices for his work. The club still supervised Bob and his role didn’t change other than invoicing for work. During the course of business one day, it was alleged that a co-worker, Iris, had been the subject of sexually inappropriate comments from Bob, and bullying by him. The evidence was that the Bob had singled Iris out for attention, that the attention was unwanted and unwelcome, that Iris found the comments offensive and very rude and the experience gave rise to feelings of discomfort, embarrassment and anger. Bob’s evidence was that he did not single out Iris, that he and Iris engaged in light-hearted banter, and that Iris did not resist him or complain about him. The club’s policies, procedures and Code of Conduct contained in its Employee Handbook described behaviour such as bullying and harassment. A further consideration was that there was inconsistency in the interpretation and application of the policies and procedures by leaders in the workplace and they often applied different values. Bob was a mature worker and really didn’t understand the requirements of the club’s Code of Conduct, despite training.

1. Is Bob now a contractor or can it be argued that he is an employee? Explain with reference to the common law test.

2. If Bob is an employee, are the policies binding regarding Bob’s contract of employment? Explain with reference to case law.

3. If the Club were to dismiss Bob, do they have a valid reason? Explain referring to legislation and case law.

Paper For Above Instructions

Executive summary

This paper applies established common law tests and statutory guidance to decide (1) whether Bob is a contractor or employee, (2) whether workplace policies are legally binding on Bob’s contract, and (3) whether the Club would have a valid reason to dismiss him for alleged sexual harassment and bullying. The analysis concludes that, on the facts, Bob is likely still an employee despite invoicing through an ABN; the Club’s Code of Conduct is likely incorporated into his contract or otherwise binding in effect; and dismissal for serious misconduct would be potentially valid provided procedural fairness is observed and the conduct is proven (Fair Work Act 2009 (Cth); Hollis v Vabu (2001)).

1. Employee or contractor: application of the common law test

Determination of employment status uses a multi-factor common law inquiry (the “multi-factor” or “economic reality” approach). Courts consider control, integration, mutuality of obligation, provision of tools, ability to subcontract/delegate, method of payment, tax arrangements and the reality of the working relationship (Ready Mixed Concrete [1968]; Hollis v Vabu (2001) 207 CLR 21). The presence of an ABN and invoicing is relevant but not determinative: courts look to substance over form (Fair Work Ombudsman guidance; Hollis v Vabu (2001)).

Applying the facts: the Club continues to supervise Bob and his role “didn’t change” other than invoicing. He cannot be shown to have genuine autonomy (no evidence he could delegate tasks, supplied his own major equipment, or truly negotiate terms). The Club’s supervision and unchanged duties point strongly toward an employment relationship (integration into the Club’s business and control factors) (Hollis v Vabu (2001)). Mutuality of obligation—ongoing work expectation—also suggests employment rather than a discrete contract for services. Accordingly, despite ABN/invoicing, a court would likely characterise Bob as an employee on the usual common law test (Ready Mixed Concrete; Hollis v Vabu) (Fair Work Ombudsman 2020).

2. Binding effect of policies on Bob’s contract

Whether workplace policies are contractually binding depends on incorporation into the employment contract (expressly or by implication), consistent conduct, and whether the policies create enforceable contractual terms (Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410; cases on handbook incorporation). Express statements in an offer or contract that the handbook forms part of terms will ordinarily bind parties. Absent express terms, consistent application over time and representations by the employer may support incorporation (case law on handbooks and incorporation principles).

Even if not strictly incorporated as contractual terms, policies can create legitimate expectations and procedural obligations that the employer should follow (implied terms of trust and confidence and obligations of procedural fairness). Courts distinguish between mandatory rules (more likely contractual) and aspirational or discretionary policies (less likely contractual). Here, the Code of Conduct appears to be a core workplace document and Bob received training; the Club applied the Code across venues. Those facts strengthen an argument that the Code is incorporated or at least imposes contractual or quasi-contractual obligations on the employer (and practical obligations on staff) (Byrne & Frew; workplace handbook jurisprudence).

3. Validity of dismissal for alleged misconduct

Under the Fair Work Act 2009 (Cth), unfair dismissal jurisdiction requires that a dismissal be for a valid reason related to capacity or conduct and that the employer follow a fair process (s.385–392; s.387 factors). Serious misconduct such as sexual harassment and bullying can constitute valid grounds for summary dismissal if proven (Australian Human Rights Commission guidance; Fair Work Commission decisions on misconduct).

Applying the facts: the alleged behaviour—sexualized comments directed at Iris and unwelcome attention causing distress—if established on credible evidence, constitutes misconduct of a serious nature. The Club would therefore have a potentially valid substantive reason to dismiss. However, procedural fairness is crucial: the Club must investigate the complaint, give Bob notice of allegations, allow him to respond, consider relevant evidence and apply its policies consistently. Inconsistent application of policies by leaders (a fact here) weakens the Club’s position if it can be shown Bob was treated differently from others or if the Club failed to follow its own procedures (Fair Work Commission guidance; Byrne & Frew principles).

Practical outcome: If the Club carries out a genuine, unbiased investigation and the findings support a misconduct conclusion, dismissal would likely be valid. Conversely, if the Club summarily dismisses Bob without investigation, relies solely on his invoicing status to treat him as a non-employee, or applies policies inconsistently, Bob may have a viable unfair dismissal or breach-of-contract claim (Fair Work Act 2009; relevant case law).

Conclusion and recommended steps for the Club

Given the weight of control, supervision and unchanged duties, Bob is more likely an employee despite ABN invoicing (Hollis v Vabu (2001); Fair Work Ombudsman). The Code of Conduct is likely to be binding or at least impose procedural obligations. The Club may have a valid reason to dismiss Bob for proven sexual harassment/bullying, but it must: (1) confirm employment status before treating him as a non-employee, (2) follow its own disciplinary procedures and principles of natural justice, (3) conduct and document a proper investigation, and (4) ensure consistent application of sanctions across staff to minimise legal risk (Fair Work Act 2009; Fair Work Commission practice).

References

• Fair Work Act 2009 (Cth).
• Hollis v Vabu Pty Ltd (2001) 207 CLR 21 (High Court of Australia).
• Ready Mixed Concrete (South East) Ltd v Minister of Pensions [1968] 2 QB 497 (English Court of Appeal) — seminal multi-factor test.
• Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410 (High Court of Australia) — contractual interpretation and terms.
• Fair Work Ombudsman, "Employee or contractor?": guidance on distinguishing employment from contracting (Australian Government).
• Fair Work Commission, "Unfair dismissal — guide for employers and employees" (practical guidance and s.387 factors).
• Australian Human Rights Commission, "Sexual Harassment in the Workplace — Know Your Rights" (guidance on prohibited conduct and employer obligations).
• WorkSafe Australia, "Workplace bullying and psychosocial hazards" guidance (employer duties and investigation practice).
• Conaghan, J., Fischl, R., & Klare, K., "Labour Law Textbook: Principles and Cases" (selected chapters on employment status and disciplinary process).
• Australian employment law commentary: "Employee or Contractor? An Overview", Journal of Australian Employment Law (review article summarising case law and statutory interaction).